Covers statutory rights to annual leave, public holidays, maternity leave, adoption leave, paternity leave, parental leave, force majeure leave, carer's leave, jury service and redundancy. Also looks at contractual entitlement to compassionate leave and sick leave.
An employee is either at work or on some type of leave. That leave is based on either a statutory or a contractual entitlement. Contractual leave is a matter between the employer and the employee, statutory leave is a matter of law. An employee cannot contract out of their statutory entitlement although there is nothing to prevent an employer and employee agreeing to a greater leave entitlement than that provided in the legislation. The main leave entitlements are summarised below.
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Section 19 of The Organisation of Working Time Act 1997 (OWTA) sets out an employee's entitlement to annual leave which is calculated in accordance with the formulae contained in the Act. A full-time employee is entitled to four working weeks in a leave year in which they work at least 1,365 hours (unless it is a leave year in which the employee changes employment).
The Workplace Relations Act 2015 amended the OWTA to provide for the accrual of annual leave during a period of certified sick leave. It also allows workers to retain annual leave they could not take due to illness for up to 15 months after the end of the year in which it is accrued. Workers who leave their employment within 15 months of the end of the year in which this annual leave was accrued, are entitled to payment in lieu of this leave which was untaken due to illness. This brings Irish law in line with the Grounding EU Directive and case law which had emerged from the Court of Justice of the European Union on the point.
There are nine public holidays in a year. In addition to annual leave, an employee is entitled to one of the following:
- a paid day off on the day determined to be a public holiday
- a paid day off within a month of that day
- an additional day of annual leave
- an additional day’s pay.
It is at the employer's sole discretion as to which of the above options is chosen. An employee can ask their employer to make such an election 21 days before the public holiday is due and an employer is required to notify the employee of the options elected at least 14 days before that holiday. If the employer fails or refuses to notify the employee, then the default will be that the employee is entitled to a paid day off on that day or, in a case in which that option does not apply because the employee would not otherwise be working on that day, the employee will be entitled to an additional day’s pay.
For an employee to be entitled to a public holiday, the employee must have worked for the employer at least 40 hours during the period of five weeks ending on the day before the public holiday. An employee will not be entitled to the benefit of the public holiday if they are absent the day immediately before the public holiday for the following reasons:
- The employee is absent in excess of 52 weeks by reason of an injury sustained in an occupational accident.
- The employee is absent in excess of 26 consecutive weeks by reason of an injury sustained by the employee in any accident or by reason of any disease from which the employee suffers or suffered.
- The employee is absent in excess of 13 consecutive weeks caused by any reason not referred to above but where the absence is authorised by the employer including a lay off.
- The employee is absent by reason of a strike in the business in which the employee is employed.
Public holidays should not be confused with bank holidays. For instance, Good Friday is a bank holiday and not a public holiday.
Employers are obliged to keep records of holidays and public holidays for a period of three years.
Maternity provisions are contained in the Maternity Protection Acts 1994 and 2004. There is no qualifying time period before an employee can take maternity leave: their entitlement to maternity leave arises once they comply with the notification requirements.
The notification requirements are set out in Section 9 of the Maternity Protection Act 1994 as amended by the 2004 Act. Section 9 requires an employee to notify the employer in writing of her intention to take maternity leave and, at the same time, give to her employer or produce for their inspection a medical or other appropriate certificate confirming the pregnancy and specifying the expected week of confinement. This notification must be given no later than four weeks before the commencement of maternity leave. This is a mandatory requirement.
The minimum period of maternity leave is six weeks. This has to be taken not later than two weeks before the expected birth and not earlier than the four weeks after the birth. This minimum period can be varied in circumstances where the baby either comes earlier than anticipated or there is a later birth. The maximum maternity leave period is 26 weeks. In addition there is an entitlement to 16 weeks additional maternity leave. With the exception of the right to remuneration all other employment rights are preserved during the maternity/additional maternity leave period.
For more information, see our factsheet on maternity leave.
Under the new Paternity Leave and Benefits Act 2016, a relevant parent is entitled to two continuous weeks' paid leave in respect of births from September 2016. Payment is at the same rate as maternity benefit, subject to a person having the appropriate PRSI contributions. Similar to maternity leave, employers can top up paternity benefit if they wish. Where employers make a top up to female employees, from an equality perspective, they will need to consider a similar approach to paternity benefit for male employees.
The definition of relevant parent is key to the Act. A relevant parent is defined as the father of the child or the spouse, civil partner or cohabitant of the mother. In most family circumstances, it will be the father. The leave applies to one person only, except in the case of adoption, whereby a biological father may have already taken paternity leave so it allows the subsequent adopting father to also take leave.
The leave can be taken at any time in the 26 weeks' following the birth of the child (or placement in the case of adoption). Four weeks' notice is required before the leave may be taken, however, there is provision for shorter notice. The Act allows for the postponement of leave in certain circumstances, such as the sickness of a relevant parent and the hospitalisation of the child.
The leave is to be used for the sole purpose of looking after the child. If an employer finds out that a parent is abusing the leave then the employer can terminate it by giving notice in writing.
The Act contains protections from penalisation for taking paternity leave and preservation of employment rights while on paternity leave. Similar to the maternity legislation, the Act contains provisions such as the voidance of termination/notice of termination of a relevant parent while he is on paternity leave or the suspension of an employee while on leave.
For more information, see our factsheet on paternity leave.
Parental leave provisions are governed by the Parental Leave Act 1998 and Parental Leave (Amendment) Act 2006 as amended. Parental leave is generally only available to employees with one year’s continuous service with the employer. There is a limited exception to this rule.
To qualify for parental leave, the employee must be the natural or adopted parent of the child for whom the leave is taken or acting in loco parentis. The child must be under eight or under 16 if disabled or suffering from a long term illness. Where a child is between six and eight at the time of adoption, the leave must be taken within two years of the adoption order. The maximum period of entitlement to parental leave is 18 weeks.
The 18 weeks can be taken in one block of 18 weeks or in blocks of not less than six weeks with a gap of at least 10 weeks between each block. Any other combination requires the agreement of the employer. The purpose of parental leave is to take care of the child. It is not for the purpose of taking a sabbatical and if an employer has reasonable grounds to believe that the employee is not using the leave to take care of the child, the employer can terminate the leave.
An employee who is on parental leave will still be regarded as working by the employer and, apart from the employee’s right to remuneration or superannuation benefits, all other employment rights are preserved. As with maternity leave, absence from employment on parental leave is not to be treated as part of any other leave including sick leave, annual leave or adoptive leave to which the employee would be entitled. If an employee is on probation at the time they go on parental leave, the probationary period may be suspended during the period of parental leave and be completed by the employee when they return to work.
An employee has the right to return to work after the expiry of their parental leave to their old job under the same terms and conditions as before. If there has been a change of employer, the employee has the right to return to work for the new employer in their old job under the same terms and conditions as before. If improvements were made to the employee's position whilst they were away on parental leave, those improvements should be incorporated into their terms and conditions.
Where it is not reasonably practicable for the employer to permit the employee to return to their old job, the employee is entitled to be offered suitable alternative employment. Suitable alternative employment has to be suitable and appropriate for the employee in the circumstances.
Parents employed by the same employer can, with the employer's consent, transfer 14 out of the 18 weeks of their parental leave to each other.
An employer is required to keep a record of all parental leave taken and the records must be kept for eight years.
The European Union (Parental Leave) Regulations (Statutory Instrument No 81 of 2013) came into force on 8 March 2013. The new Regulations increase the amount of parental leave from 14 working weeks to 18 working weeks per parent per child. The Regulations give employees returning to work the right to request changes to their working hours or patterns for a set period on their return. An employer must consider this request but does not have to grant it.
Force majeure leave
Force majeure leave is also governed by The Parental Leave Acts 1998 and 2006. It arises where, for urgent family reasons and owing to an injury or illness, the immediate presence of the employee at the place where the injured or ill person is, whether at their home or elsewhere, is indispensable. Force majeure leave may be taken in respect of the following people: a child, a spouse or partner, a person to whom the employee is in loco parentis, a brother or sister, a parent or grandparent, or a person in a relationship of domestic dependency.
By its very nature, notice cannot be given of force majeure leave but the employee is obliged, as soon as reasonably practicable, to give written notice to the employer of the date on which the leave was taken and give a statement of facts as to why it was taken.
Force majeure leave may consist of one or more days but shall not exceed three days in any period of 12 consecutive months or five days in any period of 36 consecutive months. Where an employee is absent on force majeure leave for part of a day, it is deemed to be a full day of force majeure leave. Force majeure leave is paid
An employer is required to keep a record of all force majeure leave taken and the records must be kept for eight years.
Leave for carers is contained in the Carer's Leave Act 2001 as amended. The purpose of carer’s leave is to enable an employee to provide full-time care and attention to what is termed a relevant person. A relevant person is a person who has such a disability that they requires full-time care and attention and is 18 years or over or, if under the age of 18, is a person in respect of whom an allowance is paid for domiciliary care of handicapped children.
An employee is entitled to 104 weeks for each relevant person. Carer’s leave can be taken in the form of one continuous period of 104 weeks or a number of periods the aggregate duration of which does not exceed 104 weeks. An employee who is on carer's leave is not entitled to be remunerated. An employee's entitlement to carer’s leave is subject to the employee having been employed by the employer for a period of 12 continuous months.
An employer is required to keep a record of all carer’s leave taken and the records must be kept for eight years.
The Juries Act 1976 as amended requires employers to give employees paid time off for jury service. Employees may, however, be excused from jury service if they can provide the Court Registrar with a satisfactory reason or where they have served on a jury at some point over the preceding three years.
Where an employer gives an employee notice of redundancy, the employee is entitled to reasonable paid time off for the purposes of seeking alternative employment or arranging for such employment.
There is no general legal obligation on employers to provide compassionate leave to an employee where a member of that employee's family dies. However, regard should be had to the employee's employment contract, the employer’s staff handbook and previous practice in similar situations; all of which can give rise to contractual entitlement to compassionate leave.
An employee who is absent from work due to illness has no statutory entitlement to receive sick pay, nor their normal salary. Any payments made by the employer will either be on the basis of a contractual entitlement on the part of the employee or on a purely voluntary basis. In practice, many employers pay their employees their full salaries during short absences due to illness and subsequently recoup any disability benefit paid to the employee by the Department of Social Protection. The number of days before an entitlement to state disability benefit arises is six days (increased from three days). An employee's entitlement, or not, to sick pay should be carefully set out in the contract of employment.